auction, Auction Law, auctioneer, auctioneers, auctions, court, legislature, may, must, shall, should, Timothy J. Kelly, will
Auctioneers are confronted with any number of laws. Legislators author bills that become law when a governor or the President signs (or is overridden by the same legislature.) Courts also make laws [common law] oftentimes needing to clarify previously enacted statutes.
Relatedly, District Judge Timothy J. Kelly remarked in a recent ruling:
… “although ‘shall’ is usually understood as mandatory,” the word is “a semantic mess” and is sometimes used “to mean ‘should,’ ‘will,’ or even ‘may.’”District Judge Timothy J. Kelly, May 1, 2022
This can make life as an auctioneer (or any other person) somewhat confusing if a law says you shall do something. What exactly does “shall” mean? Judge Kelly concludes it’s not conclusive.
As I’ve argued repeatedly that the best strategy for any auctioneer is to stay out of court — and to do that, good behavior is probably the best antidote. https://mikebrandlyauctioneer.wordpress.com/2018/07/26/auctioneers-you-want-win-in-court-or-stay-out-of-court/.
You see, whatever the statute says — or even what the legislature’s intent was — a court can rule in some other fashion. There is an unnecessary risk anytime you are in court, versus staying out of court. For one such example, we testified concerning what “explicit” meant in regard to changing an auction from “with reserve” to “without reserve” where such was used in not just this case, but another related case.
I have some insight into this as I’ve tried to help auctioneers who found themselves in court, as well as buyers and sellers clearly wronged by auctioneers. This service started in 2010 and continues today with cases all across the United States and in a handful of foreign countries.
Importantly, I’ve not been a party to any auctioneer-related lawsuit, and instead merely been hired to assist either the plaintiff or defendant. https://mikebrandlyauctioneer.wordpress.com/2018/08/06/helping-auctioneers-or-the-auction-industry/. I think it’s reasonable to assume if these parties didn’t hire me, they would hire someone else?
In fact, numerous times (in nearly 45 total cases thus far) both sides — plaintiff and defendant — wanted to hire me, and so the one [late to the …] party had to secure another expert witness. Some of you reading this have possibly been or know that “other expert witness …”
Many say auctions are “fast, fun, and transparent” and we couldn’t agree more — that they always should be. However, many auctioneers have “fast, not fun, and not transparent” confused with the above. One such treatise we wrote earlier this year focused exclusively on “better behavior” https://mikebrandlyauctioneer.wordpress.com/2022/01/27/17-ways-to-avoid-unnecessary-risks/.
Most notably, and contrary to other advice:
- Provide a safe environment for your bidders.
- Make your terms and conditions readable, and understandable.
- Set registration requirements prior to the auction, and don’t vary thereafter.
- Say “Sold!” and mean it.
We explored these four points in more detail with context here: https://mikebrandlyauctioneer.wordpress.com/2021/12/26/auctioneer-has-the-right-to-do-whatever/. It seems clear to us you should not think you have the right to do “whatever.”
Finally, an important note for (the majority of) those auctioneers who are conservative textualists … any law or rule involves words, which have to be interpreted by someone. As we noted here, what does “shall” mean? What does “explicit” mean?
For that matter, what does “life” mean? What does “liberty” mean? What does “happiness” mean? I’m all for “life, liberty, and the pursuit of happiness” as I interpret these concepts. However, with a society far different than that of our founding fathers, what do these same words actually mean today?
Mike Brandly, Auctioneer, CAI, CAS, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at Mike Brandly, Auctioneer, Brandly Real Estate & Auction, and Goodwill Columbus Car Auction. He serves as Distinguished Faculty at Hondros College, Executive Director of The Ohio Auction School, and an Instructor at the National Auctioneers Association’s Designation Academy and Western College of Auctioneering. He is faculty at the Certified Auctioneers Institute held at Indiana University and is approved by The Supreme Court of Ohio for attorney education.